1. The agreement to prove a conspiracy under K.S.A. 2006 Supp. 21-3302 need not be
express but may be implied from the actions of the parties. Moreover, the State need not
prove the completed commission of the underlying crime to prove conspiracy to commit
that crime.

3. Appellate review of a prosecutorial misconduct challenge requires a two-step analysis.
First, the appellate court decides whether the comments of the prosecutor were outside
the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the
appellate court decides whether those comments constitute plain error; that is, whether the
statements prejudiced the jury against the defendant and denied the defendant a fair trial.

4. Under the facts of this case, where relatively isolated comments are made by a prosecutor
in closing argument denigrating defense tactics, responding to credibility attacks by the
defense, and contrasting motives for truthfulness of witnesses including the defendant, and
where the comments do not appear to be gross and flagrant or reflective of ill will, the
defendant is not denied a fair trial by reason of the comments.

5. Where two statutes with differing penalties proscribe identical conduct, a criminal
defendant may be sentenced only to the lesser of the two penalties.

6. Comparing the elements of conspiracy to manufacture methamphetamine under K.S.A.
65-4159(a) to the elements of possession of drug paraphernalia under K.S.A. 65-4152, the
elements are not identical because conspiracy requires an agreement and this element is
not contained in the crime of possession of drug paraphernalia.

On January 19, 2005, Denny was involved in activities with Scott Cheever that led to
methamphetamine manufacturing and consumption and, ultimately, the fatal shooting of
Greenwood County Sheriff Matt Samuels. The extent of Denny's involvement in all these
activities is at the heart of this appeal and will be discussed in more detail below. Denny was
charged with first-degree felony murder, manufacture of methamphetamine, and conspiracy to
manufacture methamphetamine. The jury found Denny guilty of conspiracy to manufacture
methamphetamine but acquitted him of the other counts. He was sentenced to 164 months'
imprisonment.

Was there Sufficient Evidence to Support the
Conviction

of Conspiracy to Manufacture
Methamphetamine?

Denny argues he participated in certain aspects of the manufacturing of methamphetamine,
but joint participation in criminal activity, standing alone, is not sufficient to support a finding of
an agreement to commit the crime, relying heavily on State v. Harris, 266 Kan. 610,
975 P.2d 227
(1999). In a challenge of this nature, we consider all of the evidence, viewed in a light most
favorable to the prosecution, and determine whether a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. Parker, 282 Kan. 584, 597, 147
P.3d 115
(2006).

K.S.A. 2006 Supp. 21-3302(a) provides:

"A conspiracy is an agreement with another person to commit a crime or to assist
in
committing a crime. No person may be convicted of a conspiracy unless an overt act in
furtherance of such conspiracy is alleged and proved to have been committed by such person or
by a co-conspirator."

The agreement required by the statute need not be express but may be implied from the
actions of
the parties. State v. Smith, 268 Kan. 222, 228, 993 P.2d 1213 (1999); State v.
Hill, 252 Kan. 637,
641, 847 P.2d 1267 (1993). Moreover, the State need not prove the completed commission of the
underlying crime to prove conspiracy to commit that crime. Hill, 252 Kan. at 641-42.

Here, the evidence of Denny's participation was rather extensive. Based upon the
testimony of Belinda Cooper who was living at the location of these activities, Denny was part of
a group who "all joined together to make methamphetamine." Denny was outside with the others,
and when they came in the house to manufacture, Denny carried "the Budlight bag." When they
received a tip that "cops are on the way," she went up to warn Denny and Cheever, and "one was
holding a bottle, and the other one was holding a tube."

Billy Nowell testified that he was at the location when Cheever and Denny arrived, and
that he and Cheever began "peeling batteries" and Denny and Cooper "were grinding pills up in
the kitchen." All four went outside, got the anhydrous ammonia, and started the manufacturing
process, and Denny "was holding the flashlight for us." Denny participated during the process, at
one point "pouring" and at another point carrying the "Budlight duffel bag that contained
everything that was needed to complete the manufacturing." Throughout the process, Cheever
and Denny talked with each other on walkie-talkies they had brought with them. Nowell also
testified Denny admitted to cooking before that particular cook and that he willingly took part;
Nowell never heard Denny say he "wasn't willing to help." After the process was completed,
Nowell testified Denny smoked methamphetamine "off a piece of aluminum foil."

Does this extensive participation in the process demonstrate an implied agreement to
manufacture methamphetamine? Denny argues it does not; we disagree. Viewing this evidence in
the light most favorable to the State, we conclude it would stretch the imagination to think
Denny's participation did not reflect agreement to manufacture. We are most persuaded by the
evidence that he was involved in the earliest stages of the process, talked with Cheever
throughout the process, remained involved throughout, and "enjoyed" the fruits of the process in
his consumption of the finished product.

Denny argues State v. Harris, 266 Kan. 610, stands for the proposition that
conspiracy is
not proven by mere participation in the absence of some evidence of an agreement. We disagree.
Harris held that mere presence of a purported co-conspirator at an illegal
sale did not imply
agreement with other purported co-conspirators to sell cocaine. Here, Denny was not merely
present; his extensive involvement implies agreement.

Denny also argues that because the jury acquitted him of manufacture of
methamphetamine, the facts surrounding such manufacture should not be considered as
supportive of an implied agreement to manufacture, citing State v. Simmons, 282
Kan. 728, 148
P.3d 525 (2006). We do not read Simmons as holding that once a factfinder
determines there is
insufficient evidence to convict of the completed crime, charges of conspiracy are unwarranted.
The court in Simmons merely noted that the need for an accomplice instruction was
undermined
by a dismissal at preliminary hearing of the other purported co-conspirator. 282 Kan. at 736-37.

We are convinced that when the evidence is viewed in the light most favorable to the
State, a rational factfinder could have found Denny guilty of conspiracy to manufacture
methamphetamine.

Did Prosecutorial Misconduct Deny Denny a Fair Trial?

Denny next argues that several comments of the prosecutor during closing argument were
beyond the wide latitude allowed the prosecutor in discussing evidence and denied him a fair trial.
Appellate review of such a challenge requires a two-step analysis. First, the appellate court
decides whether the comments were outside the wide latitude that the prosecutor is allowed in
discussing the evidence. Second, the appellate court decides whether those comments constitute
plain error; that is, whether the statements prejudiced the jury against the defendant and denied
the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).

In the second step of the two-step analysis, the appellate court considers three factors:

"(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will
on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors. None of
these three factors is individually controlling. Moreover, the third factor may not override the
first two factors unless the harmless error test of both K.S.A. 60-261 [refusal to grant new trial is
inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,]
17 L. Ed 2d
705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any,
likelihood of having changed the result of the trial], have been met. [Citation omitted.]"
Albright,
283 Kan. at 428.

Denny complains of three instances of such misconduct: (1) the prosecutor denigrated
defense counsel by suggesting he "spen[t] so many hours of your time talking about these issues
that don't matter"; (2) the prosecutor personally attacked Denny's credibility in stating about his
testimony, "Do you believe that? Of course, you don't, because it's not the truth"; (3) the
prosecutor led the jury to believe that Denny's silence should be held against him, in stating about
the other witnesses, "they both are going to serve a lengthy term of imprisonment in federal
prison, which is what they deserve. But they've admitted what they did. The defendant hasn't done
that yet. You have to find him guilty of what he did."

With regard to the first instance, we view the comment as an attempt to get the jury to
focus on the evidence most relevant to the State's case rather than on the defense's version. Our
courts have not found such comments beyond the wide latitude allowed the prosecutor in
discussing the evidence in closing argument. See, e.g., State v.
Rodriguez, 269 Kan. 633, 643-45,
8 P.3d 712 (2000); State v. Mosley, 25 Kan. App. 2d 519, 524, 965 P.2d 848,
rev. denied 266
Kan. 1113 (1998).

With regard to the second instance, we view the comment as prompted by a comment
during argument by the defense, vouching for the truth of Denny's story of what happened at the
location. Given such credibility sparring by both counsel, as well as the isolated nature of the
comment, we cannot conclude that this was gross and flagrant misconduct or that it reflected such
ill will by the prosecutor as to deprive Denny of a fair trial. See State v. Elnicki, 279
Kan. 47, 64,
105 P.3d 1222 (2005) (no prejudicial error where questionable statement is provoked by
argument of counsel).

With regard to the third instance, we believe the comment must be viewed in context; the
defense stated the key State witnesses had motive to lie due to their plea agreements. In response,
the State commended their admission of guilt and contrasted it with the jury's need to "find
[Denny] guilty of what he did." The argument seems to have been that the State witnesses' plea
agreements entitled them to more credibility than Denny, who might be more inclined to fudge his
story in order to avoid the consequences of his acts. In any event, we again conclude that this was
not gross and flagrant misconduct or reflective of ill will such as to deprive Denny of a fair trial.

We conclude Denny's complaints of prosecutorial misconduct do not entitle him to a new
trial; in fact, having studied the entirety of the closing argument, having considered the high stakes
and impassioned arguments from both parties in a case involving the brutal murder of a popular
county law enforcement officer, and having considered Denny's acquittal for two related charges,
we believe Denny was not maligned by the State and received a fair trial.

Did the District Court Err in Sentencing Denny for a Severity
Level 1 Felony?

Denny next argues he was entitled to be sentenced for a severity level 4 felony because the
use of drug manufacturing paraphernalia with the intent to manufacture a controlled substance (a
level 4 felony) is identical to the crime of conspiracy to manufacture methamphetamine (a level 1
felony). Where two statutes with differing penalties proscribe identical conduct, a criminal
defendant may be sentenced only to the lesser of the two penalties. State v. McAdam,
277 Kan.
136, Syl. ¶ 3, 83 P.3d 161 (2004).

We addressed this precise question in State v. Miles, 35 Kan. App. 2d 211,
130 P.3d 1198
(2005), rev. denied 280 Kan. 988 (2006). In State v. Fanning, 281 Kan.
1176, 1183, 135 P.3d
1067 (2006), our Supreme Court cited with apparent approval the Miles result, that
the elements
of conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) were not identical to
the elements of possession of drug paraphernalia under K.S.A. 65-4152. We do not perceive that
there is any reason to depart from Miles.

In Miles, we held that K.S.A. 65-4152 possesses a crucial element which
differs from the
elements for manufacturing methamphetamine under K.S.A. 65-4159(a): physical control of drug
paraphernalia. 35 Kan. App. 2d at 214. We recognize that this holding may be difficult to
reconcile with our Supreme Court's analysis in Fanning, where the court held that the
statutory
elements were not identical when comparing the offenses of attempted manufacture of
methamphetamine and possession of drug paraphernalia with the intent to manufacture
methamphetamine, so long as the facts of the case showed no use of the paraphernalia. 281 Kan.
at 1183-84. See State v. Bethe, No. 96,020, unpublished opinion filed May 25, 2007;
State v.
Merz, No. 95,432, unpublished opinion filed May 25, 2007; State v. Johnston,
No. 95,703,
unpublished opinion filed May 25, 2007.

We need not belabor any analytical differences among these recent cases, however, so
long as we focus on the elements of conspiracy to manufacture and compare

those elements to possession of drug paraphernalia. Whether or not the defendant used the
paraphernalia to manufacture, the crime of conspiracy inherently contains an additional element
that is clearly not present in the crime of possession of paraphernalia: an agreement to
manufacture. Because the statutes proscribe different conduct, the rule of McAdam
does not
require resentencing of Denny.